H-1B Transfer Overview
H-1B transfer or change of H-1B employer or changing H-1B job is general permissible. Generally, H-1B visa is employer-specific, upon approval of an H-1B visa and the commencement of the H-1B employment, the H-1B worker is authorized to work for only the H-1B employer who petitioned for the visa. In any event, if the H-1B worker wishes to work for another employer, another company or to change H-1B job, an H-1B transfer petition should be filed.
Cap issues for H-1B transfer
When you consider doing a H-1B transfer, the issues of whether a new H-1B petition is counted against the current H-1B cap depends on whether the initial H-1B petition was cap-subject. If the petition filed by the previous H-1B employer has already been counted against the cap, a petition for sequential H-1B employer filed by a new employer will not be counted against the H-1B cap. In that case, a new H-1B employer may still be approved even if the cap has been exhausted at the time of the new H-1B filing.
Example 1:
Employer A – an IT firm petitioned an H-1B visa for a H-1B Employee. The petition was filed timely and counted against the 65,000 H-1B cap. Three years later H-1B Employee wants to work for another company with Employer B, another private IT firm. At the time of filing this new H-1B petition, the H-1B cap has been used up. Nevetheless, because H-1B Employee previous employer (Employer A) was counted against the cap, Employer B can file the new H-1B petition anytime during the year and will not be subject to the H-1B cap.
Example 2:
Employer A is a cap-exempt organization and Employer B is a non-cap-exempt employer, then H-1B Employee will be subject to the H-1B numerical limitation (H-1B cap) and the new H-1B petition filed by Employer B will not be adjudicated unless a cap number is available to H-1B Employee at the time of filing the new H-1B petition.
H-1B Portability: H1B Transfer from previous H-1B employer to a new H-1B employer
Under the “Portability Provisions” issued in 2000, a H-1B worker who was previously issued an H-1B visa is allowed to begin working for a new H-1B employer as soon as the new employer files an H-1B transfer petition for him/her. To be eligible for a H-1B transfer or to “port” or “transfer” from one employer to another employer, the H-1B worker must:
- have been lawfully admitted into the United States.
- have the new employer filed a “non-frivolous” petition while the alien was in a period of stay authorized by the Attorney General.
- not have been employed without authorization since the last entry to the U.S.
H-1B Transfer for changing H-1B job
Transferring to a new job under the H-1B visa category can be complex and time sensitive. If you are considering or in the process of renewing or transferring your H-1B visa or plan on changing to another H-1B job, please contact us for a consultation to get yourself ready for the transition.
You may be interested in the following pages:
- H-1B Specialty Occupation requirements
- H-1B employee qualifications
- H-1B Cap
- F-1 to H-1B
- H-1B Transfer
- H-1B Extension
